Shellaberger v. Fisher

• Citation: 143 F. 937
• Decision Date: 02 March 1906
• Docket Number: 2,251.
• Parties: SHELLABERGER v. FISHER.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

143 F. 937

SHELLABERGER v. FISHER.

No. 2,251.

United States Court of Appeals, Eighth Circuit.

March 2, 1906

(Syllabus by the Court.)

The operation of an automatic, push-button, electrical passenger elevator is not negligence which is actionable by any passenger except a child of years so tender that he cannot know the danger and appreciate the risk of his contact with the door or side of the shaft when the car is moving, because a passenger of sufficient maturity and discretion to appreciate this danger and risk would be guilty of contributory negligence if he permitted himself to suffer from it.

The operation of such an elevator to carry passengers without an operator in an apartment building where several children under 10 years of age lived, and used it, in a city in which the duty to employ an operator was imposed by ordinance and the failure to discharge this duty was made a misdemeanor constitutes sufficient evidence of negligence actionable by a child between 5 and 6 years of age, who was injured while running the elevator by getting her leg caught between the floor of the car and the second floor of the building as the car ascended, to warrant the submission of the question of negligence and the question, whether or not such negligence was the proximate cause of the injury, to a jury.

A child of years so tender that he cannot understand or appreciate the risk he runs is not chargeable with the duty to avoid it and hence is not guilty of contributory negligence, if he fails to do so. The duty of an infant is commensurate with his maturity and capacity.

Owners and operators of passenger elevators owe to their passengers the duty to exercise the highest degree of care for their safe transportation.

The violation of a duty of care imposed by a valid ordinance of law constitutes rebuttable evidence of negligence.

Clifford Histed (James H. Harkless and Charles S. Crysler, on the brief), for plaintiff in error.

R. R Brewster (C. E. Burnham, on the brief), for defendant in error.

Before SANBORN, Hook, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

In February or March, 1904, the defendant below purchased an apartment house in Kansas City in which there was an automatic, push-button, electrical passenger elevator, which had been installed by the former owner of the property and was used to transport the tenants to and from their rooms. From November, 1903, until two or three weeks after the defendant bought the property, this elevator was in charge of an operator; but he left at the latter time and thereafter the tenants operated the elevator themselves. Dorothy Fisher, the plaintiff, was a child between five and six years of age who had lived in one of the apartments in this house with her parents from November, 1903. On May 13, 1904, although she had been forbidden so to do by her parents, she entered the car of the elevator at the first floor and pushed the button to cause it to ascend to the second floor. As it rose one of her legs was caught and crushed between the floor of the car and the second floor of the building. She sued and recovered a judgment of $4,500 against the defendant for causal negligence in that the latter failed to employ any one to guard and operate the elevator. This writ of error was sued out to reverse this judgment.

The class of elevators of which this was one was conceived and introduced to avoid the danger and expense of an operator. Elevators of this type had been placed in operation in various parts of the country during the five years preceding the date of this accident. At the time of the accident several hundred of them were in operation, some in apartment houses, some in private residences and some in mercantile establishments. They were thought to be particularly desirable for apartment houses and private residences. They were ordinarily used without operators, but the latter were sometimes employed in business houses during the hours when many people were using the elevators. The elevator on which the accident happened was a perfect one of its type. The car itself had no door, but at the opening in the elevator shaft at each landing there was a collapsible door of vertical iron rods one-half inch in width and three inches apart when the door was closed. The car was immovable unless these doors were closed and locked and none of the doors could be unlocked or opened while the car was moving. There was a push-button at each landing and pressure upon this button would cause the car to come to that landing. One who desired to use it would push back the door, enter the elevator and close the door again. Within the car there was a push-button for each floor and the pressure upon any button would cause the car to move to and stop at the corresponding floor. There was a lever by means of which the car could be stopped between the floors. The lever and all these push-buttons were within reach of the plaintiff, and she knew how to operate the car. The space between the floor of the car and the door of the shaft when closed was 2 1/2 inches and the space between the floor of the car and the second floor of the building was 1 1/2 inches. Several children who were less than 10 years old lived in the apartment house in which this elevator was situated. It was naturally alluring to them and they had sometimes played with and operated it. There was an ordinance in force in Kansas City which declared it to be the duty of every person who used or operated any elevator, except hand-power elevators, to employ a competent person over 16 years of age to operate it, and which made a failure to discharge that duty a misdemeanor. Upon this state of facts the court below denied a motion of the defendant at the close of the evidence to instruct the jury to return a verdict in her favor, and this ruling is her chief ground of complaint.

The first reason why this ruling should be reversed which her counsel present is that its affirmance will constitute a judicial declaration that the operation of any automatic push-button, electrical passenger elevator without an operator constitutes negligence and will render futile all the labor and ingenuity which have perfected this admirable machine for the express purpose of dispensing with the operator. The evidence in this case does not invoke a decision of this nature. The only danger from the operation of this elevator which the evidence disclosed was that of impact between the passenger and the closed door or side of the shaft while the car was moving. This danger was obvious to a person of ordinary discretion and intelligence. No one but a child of tender years could fail to be guilty of contributory negligence if he permitted himself to suffer from it. Therefore, the failure to employ an operator for an elevator of this character is not actionable by any passenger except a child of years so tender that he cannot know and appreciate the risk of his contact with the door or side of the shaft when the car is moving. The case in hand falls under an exception to the general rule because the ordinance of Kansas City imposed the duty to...